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Will & Trust Contests Explained

April 26, 2017

A will or trust contest is the legal process of challenging the asset distribution written into a will or trust.

A person who makes a will or trust (testator/settlor) can freely choose who they want to leave their assets to after they die. However, it is usually not until after the testator dies (now referred to as the decedent) that the family members learn about how their loved one has chosen to distribute his or her assets. When a decedent disinherits a relative, that relative may feel they have been treated unfairly and that they should be legally entitled to an inheritance. The relative may decide that they want to challenge the decedent’s will or trust.

Since a will or trust contest is complicated, most heirs will hire a California probate and estate attorney to review the documents and help them determine if they have a valid legal reason to file a challenge with the California probate court. A hearing will be set by the court to listen to testimony of witnesses and review medical records or other documents in support of the heir’s will/trust contest.

Grounds or Reasons to Challenge a Will or Trust

You cannot simply challenge a relative’s will or trust because you were left out. For example if your mother intentionally left you out of her will, it may be difficult for you to get the court to decide that you are entitled to inherit your mother’s estate. However, if you have clear and convincing evidence that one or more of the following circumstances occurred at the time your mother made her will, you may be able to get the court to agree and award you your rightful inheritance:

The document is either not signed or is missing the proper formalities of a will or trust as required under California law. California law requires both the testator and the witnesses to all be in the same room at the same time, and the witnesses must also know that the document being signed is a will.

The testator or trustor who signed the will or trust may have not been mentally competent at the time the trust was signed.

There was fraud. Someone may have lied to the testator knowing the testator would decide to disinherit a particular relative due to the lie.

The testator was misled or tricked into signing the will because they thought it was another type of document or did not know or understand what they were signing.

There was pressure by a family member or caretaker of the testator, who may have influenced the testator to sign the document because they may benefit. This is frequently referred to undue influence. It is not necessary for the testator to have been completely senile or delusional. A court will throw out a will if the judge believes the testator was in a weakened state and was taken advantage of.

Most cases are not won or lost on the capacity of the testator. The contest is usually about undue influence. In these cases the testator may still have enough mental capacity to understand what is going on, but because of age, weakness, or fear, feel that he/she must do as directed by a third person. Examples of this may be caretakers who threaten to leave or threaten physical harm. Also children who threaten to cut off relationships with, or constantly denigrate other family members and apply pressure to have the estate left to them.

If you want to contest a will or trust

Will and trust contests can be very difficult for the challenger. Old family arguments sometimes make these cases the most bitter and hard fought of all. The best person to discuss your concerns about whether you have a valid will or trust contest claim against your relative’s estate is a California probate attorney who is familiar with the legal procedure regarding wills and trusts. The attorney can analyze your claim, prepare and file the necessary court documents, and get your case ready for trial. Please feel free to call our office at 858-792-5988 for a consultation.

Case Example

In one case I won several years ago, a couple, Karen and George, had been living together for 10 years. During that time George kicked out Karen’s sons when they were ages 15 and 18. After throwing out the boys George forbade Karen to even have contact with her own children. Karen was so intimidated by George that not only did she obey, she kept hidden the only picture she had of her first grandchild.

Karen and George had purchased a home together and taken out mortgage life insurance. They named each other beneficiaries of their insurance policies, but George insisted that Karen name George’s mother the alternate beneficiary of her life insurance policy. Eventually George murdered Karen and committed suicide.

After being turned down by several other attorneys, Karen’s sons came to me, to get them their mother’s life insurance. I had a few witnesses as to George hitting Karen on two occasions, but the two most important witnesses were dead. There were no police reports, medical records, or other physical evidence of abuse. Using the available witnesses and expert testimony from a psychologist about battered woman’s syndrome, I was able to convince the judge, by clear and convincing evidence, that George coerced Karen into naming someone she did not want as the beneficiary of her life insurance. The judge ordered the life insurance money be paid to Karen’s sons.

I am very proud of the fact that I have succeeded in overturning coerced wills and trusts several times. These are always difficult cases.